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TMI Blog1991 (4) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... n or rate of duty and his arguments are mainly confined to the question of time-bar and for that limited purpose, he is putting forth certain arguments on technical aspects of test results for establishing bona fides in their declaration. 3. The facts of the case, as stated by Shri Kudav, are that the company had declared the fibre content of the blended yarn contained in sort No. 8744 of fabrics as 33% polyester, 33% viscose and 34% cotton and got classification approved under 18A(ii) of Central Excise Tariff. Shri P. A. V. Kudav, indicated that first a sample was drawn of the processed fabrics on 7-10-1980 mainly for testing the blend composition of fibres in the fabrics. Out of samples of 4 sorties, three were found to be as per declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty for the extended period. 4. The above facts narrated by the learned Consultant are not disputed by the Departmental Representative Shri Naik. 5. We heard the elaborate arguments from both the sides. 5.1. Arguments on behalf of the appellants can be summed up as below: (i) The Collector himself has held that there was no conscious knowledge or intention to evade duty and has not imposed penalty under Rule 173Q. Hence, even assuming that there is a variation in the declaration, that cannot be construed as a wilful or deliberate mis-declaration to justify demand for extended period; (ii) They do not admit any mis-declaration of yarn. They stand by the declaration as cotton yarn - cotton fibre content declared as 34%. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 35/32/33, the actual blend composition can be taken as polyester 33, viscose 33 and cotton 34. (iv) It was also pleaded that polyester content at 45% was noticed in the case of test of processed fabrics, while it was only 35% while testing grey fabrics. If yarn has been tested, it would have confirmed their declaration, which the Department have not chosen to do despite the departmental instructions and despite their own request. There is bound to be variation in cotton content, even while testing grey fabrics because the process of removal of sizing material would also remove certain cotton contents. (v) The demand is time-barred. They had filed the classification list for the sort in 1977 and sample of fabrics was first drawn a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of test of fabrics. From the technical opinion furnished from the Head of the Department of Textile Chemistry of Bombay University, we are satisfied that there are bound to be variations in the blend composition, when fabrics are tested. Test results on fabrics, if applied to yarn, are to be given allowance to the extent 2 points plus or minus, as per the opinion. Apart from the chemical opinion, even the manual of Departmental instructions as revealed by Shri Naik, JDR prescribe tolerance of 1 point. All these factors clearly indicate that their declaration of yarn was made to the best of their intention and based on actual blend. It is also not disputed that out of 4 sorts, tested, other three sorts were found to be as per the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the merits of the appellants arguments on technical possibility of variation of fibre content, we are fully satisfied that there is no wilful mis-declaration with an intention to evade duty, justifying extended period for demanding duty. We also take note of the fact that the Collector himself concedes that there is no such conscious effort for evading duty and hence has refrained from imposing penalty. We are of the view that the appellant has given the declaration to the best of their intention based on the blend and their own laboratory analysis. They have not come in the way of drawal of sample by the Department, while filing the classification list. It is also not the case that the appellant would not have agreed for provisional asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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